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Reasonable accommodations for disabled employees - how far must an employer go?

In the past few days, there has been widespread media coverage of former Newcastle United Football club star Jonas Gutierrez’s successful disability discrimination claim against his old club. It has been reported that Mr Gutierrez could be awarded up to £2million in compensation, in light of the finding of the Birmingham employment tribunal that he had been discriminated against, by reason of his disability, on being dropped following his return from treatment for testicular cancer. The employment tribunal also found that Newcastle United had failed to provide reasonable accommodations for Mr Gutierrez by not taking account of his medical related absence when considering whether he had met a condition in his contract that required him to start a set number of games over a four year period, which if satisfied, would have triggered an automatic one year extension to his contract. This case serves as a high profile reminder to employers of the dangers of failing to provide reasonable accommodations to disabled employees, particularly when the failure to do so precedes a decision to dismiss.

The Irish High Court has recently had cause to consider the extent of the obligation to provide reasonable accommodations to disabled employees and while nowhere near as high profile as the Gutierrez case, the judgment in Nano Nagle School v Daly [2015] IEHC 785 is of far more relevance and practical significance for Irish employers.

FACTS

Ms Nagle was a special needs assistant (SNA) who was tragically injured in an accident that rendered her wheelchair bound. She sought to return to work following her recovery and produced a report from her occupational therapist which certified her as fit to return on a phased basis. The respondent school retained its own occupational therapist who identified 16 duties of an SNA and concluded that Ms Nagle could complete 9 duties wholly or partly but not the remaining 7. The report from the school’s occupational therapist was considered by a doctor from Medmark who, following a discussion with the principal of the school about the feasibility of accommodating Ms Nagle as outlined in the occupational therapist’s report, opined that Ms Nagle was medically unfit to perform the role of an SNA. The school relied on this doctor’s report to justify dismissing Ms Nagle on the grounds of medical incapacity and Ms Nagle subsequently sought to challenge that decision by way of a discriminatory dismissal claim under the Employment Equality Acts 1998 to 2015 (the “Employment Equality Acts”).

HIGH COURT

Ms Nagle succeeded in her claim against the school before the Labour Court, with the Court finding that the school had failed to discharge its obligation to provide reasonable accommodations to her, as it had only considered the accommodations required to enable her return to all of her duties as an SNA and not to the accommodations required to enable her return to adjusted duties.

One of the primary grounds of appeal advanced by the respondent school before the High Court was that the Labour Court had made an error of law in relation to its interpretation of section 16 of the Employment Equality Acts, in that the Labour Court had accepted that the duty to provide reasonable accommodations to Ms Nagle extended to considering reducing her duties to enable her return to an adjusted role. The respondent school submitted that the extent of an employer’s duty to provide reasonable accommodations did not extend to reducing a disabled employee’s duties.

The High Court, in dismissing this ground of appeal, stated that definition of “appropriate measures” (more colloquially referred to as “reasonable accommodations”) in the Employment Equality Acts included the “adaptation of… patterns of working time…[and] distribution of tasks” and that, as a consequence, a disabled employee is to be regarded as fully competent to undertake and fully capable of undertaking the duties of a job if the disabled employee would be so competent and capable on the distribution of tasks associated with that job being adapted by the employer. The Court further stated that the distribution of tasks must also include the elimination of tasks.

The Court ultimately upheld the Labour Court’s conclusion that the respondent school, in failing to consider whether or not certain of Ms Daly’s duties as an SNA could be redistributed, had breached its obligation to provide reasonable accommodations to her.

CONCLUSION

Section 16 of the Employment Equality Acts can provide a complete defence to a discriminatory dismissal claim if it can be shown that the employer believed an employee was not fully capable of performing the duties for which he/she was employed. On first, and perhaps even second, reading of section 16, an employer might reasonably conclude that if an employee is, by reason of their disability, and even with the provision of reasonable accommodations, not fully capable of performing the duties for which they are employed, the employer can lawfully terminate that disabled employee’s employment. However, this case makes clear that this is not the case and that the obligation to provide reasonable accommodations extends to considering adjusting a disabled employee’s role such they might be in a position to return to a role that is different to that performed by their nondisabled colleagues.

The High Court in this case was clearly of the view that to demonstrate compliance with section 16 of the Employment Equality Acts, the respondent school had to be in a position to evidence that it had considered adjusting the duties required of an SNA to enable Ms Nagle return to an adjusted role. This necessitated an assessment of the feasibility of reallocating certain of her duties to other SNAs. As this was not done, the Court was not satisfied that the school had adequately discharged its obligation to provide reasonable accommodations.

This judgment is a significant pronouncement on the extent of the obligation to provide reasonable accommodations to a disabled employee. It re-emphasises that the obligation can be fairly described as onerous. That said, the obligation is not an untrammelled one and is subject to the overriding principle that the obligation only extends as far as providing accommodations that do not impose a disproportionate burden. The High Court acknowledged this restriction when it stated: “It may or may not be relevant to consider whether a point is reached where the appropriate measures transform the job into something entirely different from that which originally existed”. Unfortunately it is not possible to provide generally applicable guidance on where the line is drawn on when the provision of reasonable accommodations involves the imposition of a disproportionate burden. However, such a line does exist and it is for employers to consider, in each individual case, whether that line has been crossed when it comes to considering the reasonable accommodations that may need to be provided to enable a disabled employee undertake their role.

The key learning from this case is that the obligation to provide reasonable accommodations extends to considering, and in certain cases, modifying the role of a disabled employee to enable them to return to a modified role. A failure to do so can render an employer in breach of section 16. Conversely, an employer who does give consideration to the feasibility of a role adjustment, and reasonably concludes that to do so would impose a disproportionate burden, is in a far better position to proceed with a dismissal on the grounds of medical incapacity and defend any ensuing litigation.

Compare jurisdictions: Arbitration

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